1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERICK CHARLES MENDIOLA, No. 2:23-cv-01512 DB P 12 Plaintiff, 13 v. ORDER 14 J. KING, et al., 15 Defendants. 16
17 18 Plaintiff, an inmate at Mule Creek State Prison, proceeds without counsel and seeks relief 19 under 42 U.S.C. § 1983. This matter was referred to the undersigned by Local Rule 302 pursuant 20 to 28 U.S.C. § 636(b)(1). Plaintiff’s complaint filed on July 24, 2023, is before the court for 21 screening. 22 As set forth below, the complaint states a claim against defendants Celestine and King but 23 does not state a claim against defendant Leau.1 Plaintiff is granted leave to amend. Within 30 24 days, plaintiff must inform the court how he will proceed. 25 //// 26
27 1 Defendant Leau’s name is currently entered into the docket as “Leav”; if plaintiff states a cognizable claim against defendant Leau, the court will direct the Clerk of the Court to correct the 28 spelling of the defendant’s name. 1 I. In Forma Pauperis 2 Plaintiff seeks to proceed in forma pauperis. (ECF No. 2.) Plaintiff’s declaration makes 3 the showing required by 28 U.S.C. § 1915(a). The motion is granted. 4 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 5 1914(a), 1915(b)(1). By separate order, plaintiff will be assessed an initial partial filing fee in 6 accordance with the provisions of 28 U.S.C. § 1915(b)(1). The order will direct the appropriate 7 agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the 8 Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of 20% of 9 the preceding month’s income credited to plaintiff’s prison trust account. These payments will be 10 forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s 11 account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 12 II. Screening Requirement 13 The court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 15 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 16 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 17 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 18 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 19 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 20 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless legal 21 theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical 22 inquiry is whether a constitutional claim has an arguable legal and factual basis. See Jackson v. 23 Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 24 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement 25 of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 26 544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a 27 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 28 sufficient “to raise a right to relief above the speculative level.” Id. The facts alleged must “give 1 the defendant fair notice of what the... claim is and the grounds upon which it rests.” Id. In 2 reviewing a complaint under this standard, the court accepts as true the allegations of the 3 complaint and construes the pleading in the light most favorable to the plaintiff. See id.; Scheuer 4 v. Rhodes, 416 U.S. 232, 236 (1974). 5 III. Allegations in the Complaint 6 On August 11, 2022, plaintiff arrived at California State Prison – Solano. (ECF No. 1 at 7 3.) Plaintiff was placed in a holding cell by Officers J. King and L. Celestine, and neither secured 8 the door. (Id.) Plaintiff alleges “these officers had their RnR inmate worker Calzonci” come in the 9 cell to assault plaintiff. (Id.) Plaintiff and Calzonci were fighting and moved into the hallway. (Id. 10 at 3-4.) Celestine yelled “get down” and plaintiff tried to follow instructions and drop to the floor 11 as Colzonci kept battering plaintiff. (Id.) Celestine released his pepper spray directly in plaintiff’s 12 eyes, face, neck, and chest. (Id.) Celestine aggressively cuffed plaintiff and stood him up. (Id. at 13 4-5.) Celestine and King took plaintiff outside to wash off the chemicals. (Id. at 6.) After the 14 incident, Lieutenant S. Leau told plaintiff to stay quiet about the incident or he would get more 15 time added to his release date. (Id.) 16 The complaint indicates plaintiff is asserting violations of his rights under the Eighth 17 Amendment. (ECF No. 1 at 3, 5.) Plaintiff seeks monetary damages. (Id. at 8.) 18 IV. Discussion 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a deprivation of a 20 constitutional right or federal law under color of state law. See West v. Atkins, 487 U.S. 42, 48 21 (1988). The court considers below whether plaintiff has alleged a deprivation of a constitutional 22 right by each of the three named defendants. 23 A. Officers King and Celestine 24 Plaintiff states a cognizable claim under the Eighth Amendment against defendants King 25 and Celestine. Excessive force in violation of the Eighth Amendment occurs when prison officials 26 apply force maliciously and sadistically to cause harm, rather than in a good-faith effort to 27 maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 7-7 (1992); see also Clement v. 28 Gomez, 298 F.3d 898, 903 (9th Cir. 2002). The relevant factors may include (1) the need for 1 application of force, (2) the relationship between that need and the amount of force used, (3) the 2 threat reasonably perceived by the responsible officials, and (4) any efforts made to temper the 3 severity of a forceful response. Hudson, 503 U.S. at 7.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERICK CHARLES MENDIOLA, No. 2:23-cv-01512 DB P 12 Plaintiff, 13 v. ORDER 14 J. KING, et al., 15 Defendants. 16
17 18 Plaintiff, an inmate at Mule Creek State Prison, proceeds without counsel and seeks relief 19 under 42 U.S.C. § 1983. This matter was referred to the undersigned by Local Rule 302 pursuant 20 to 28 U.S.C. § 636(b)(1). Plaintiff’s complaint filed on July 24, 2023, is before the court for 21 screening. 22 As set forth below, the complaint states a claim against defendants Celestine and King but 23 does not state a claim against defendant Leau.1 Plaintiff is granted leave to amend. Within 30 24 days, plaintiff must inform the court how he will proceed. 25 //// 26
27 1 Defendant Leau’s name is currently entered into the docket as “Leav”; if plaintiff states a cognizable claim against defendant Leau, the court will direct the Clerk of the Court to correct the 28 spelling of the defendant’s name. 1 I. In Forma Pauperis 2 Plaintiff seeks to proceed in forma pauperis. (ECF No. 2.) Plaintiff’s declaration makes 3 the showing required by 28 U.S.C. § 1915(a). The motion is granted. 4 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 5 1914(a), 1915(b)(1). By separate order, plaintiff will be assessed an initial partial filing fee in 6 accordance with the provisions of 28 U.S.C. § 1915(b)(1). The order will direct the appropriate 7 agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the 8 Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of 20% of 9 the preceding month’s income credited to plaintiff’s prison trust account. These payments will be 10 forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s 11 account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 12 II. Screening Requirement 13 The court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 15 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 16 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 17 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 18 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 19 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 20 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless legal 21 theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical 22 inquiry is whether a constitutional claim has an arguable legal and factual basis. See Jackson v. 23 Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 24 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a short and plain statement 25 of the claim that shows the pleader is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 26 544, 555 (2007). In order to state a cognizable claim, a complaint must contain more than “a 27 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 28 sufficient “to raise a right to relief above the speculative level.” Id. The facts alleged must “give 1 the defendant fair notice of what the... claim is and the grounds upon which it rests.” Id. In 2 reviewing a complaint under this standard, the court accepts as true the allegations of the 3 complaint and construes the pleading in the light most favorable to the plaintiff. See id.; Scheuer 4 v. Rhodes, 416 U.S. 232, 236 (1974). 5 III. Allegations in the Complaint 6 On August 11, 2022, plaintiff arrived at California State Prison – Solano. (ECF No. 1 at 7 3.) Plaintiff was placed in a holding cell by Officers J. King and L. Celestine, and neither secured 8 the door. (Id.) Plaintiff alleges “these officers had their RnR inmate worker Calzonci” come in the 9 cell to assault plaintiff. (Id.) Plaintiff and Calzonci were fighting and moved into the hallway. (Id. 10 at 3-4.) Celestine yelled “get down” and plaintiff tried to follow instructions and drop to the floor 11 as Colzonci kept battering plaintiff. (Id.) Celestine released his pepper spray directly in plaintiff’s 12 eyes, face, neck, and chest. (Id.) Celestine aggressively cuffed plaintiff and stood him up. (Id. at 13 4-5.) Celestine and King took plaintiff outside to wash off the chemicals. (Id. at 6.) After the 14 incident, Lieutenant S. Leau told plaintiff to stay quiet about the incident or he would get more 15 time added to his release date. (Id.) 16 The complaint indicates plaintiff is asserting violations of his rights under the Eighth 17 Amendment. (ECF No. 1 at 3, 5.) Plaintiff seeks monetary damages. (Id. at 8.) 18 IV. Discussion 19 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a deprivation of a 20 constitutional right or federal law under color of state law. See West v. Atkins, 487 U.S. 42, 48 21 (1988). The court considers below whether plaintiff has alleged a deprivation of a constitutional 22 right by each of the three named defendants. 23 A. Officers King and Celestine 24 Plaintiff states a cognizable claim under the Eighth Amendment against defendants King 25 and Celestine. Excessive force in violation of the Eighth Amendment occurs when prison officials 26 apply force maliciously and sadistically to cause harm, rather than in a good-faith effort to 27 maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 7-7 (1992); see also Clement v. 28 Gomez, 298 F.3d 898, 903 (9th Cir. 2002). The relevant factors may include (1) the need for 1 application of force, (2) the relationship between that need and the amount of force used, (3) the 2 threat reasonably perceived by the responsible officials, and (4) any efforts made to temper the 3 severity of a forceful response. Hudson, 503 U.S. at 7. Plaintiff may proceed against defendant 4 Celestine on a claim of excessive force under the Eighth Amendment based on Celestine’s 5 alleged release of pepper spray directly in plaintiff’s eyes, face, neck, and chest while plaintiff 6 was being battered and allegedly attempting to comply with orders. 7 In a “failure-to-protect” Eighth Amendment violation claim, an inmate must show that a 8 prison official’s act or omission (1) was objectively, sufficiently serious, and (2) the official was 9 deliberately indifferent to inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 10 (1994); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). The failure of prison officials to 11 protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment 12 violation where prison officials know of and disregard a substantial risk of serious harm to the 13 plaintiff. See Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. Plaintiff may proceed against 14 defendants King and Celestine on a failure to protect claim under the Eighth Amendment based 15 on allegations that King and Celestine directed an inmate worker to enter plaintiff’s cell and 16 assault him. 17 B. Lt. Leau 18 To the extent Lt. Leau allegedly threatened plaintiff and instructed him to stay quiet about 19 the incident, plaintiff has not alleged a constitutional wrong. See Gaut v. Sunn, 810 F.2d 923, 925 20 (9th Cir. 1987). Plaintiff does not state a retaliation claim under the First Amendment because he 21 does not allege he was engaged in any protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 22 567-68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation 23 entails five basic elements: (1) An assertion that a state actor took some adverse action against an 24 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 25 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 26 legitimate correctional goal.”) (footnote omitted); see also Watison v. Carter, 668 F.3d 1108, 27 1114 (2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 28 //// 1 Plaintiff also has not stated a claim against Lt. Leau under the Eighth Amendment. See 2 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), opinion amended on denial of reh’g, 135 3 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison guard are not enough 4 to implicate Eighth Amendment). Verbal harassment or abuse is not sufficient to state a 5 constitutional deprivation under 42 U.S.C. § 1983. Freeman v. Arpaio, 125 F.3d 732, 738 (9th 6 Cir. 1997), overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th 7 Cir. 2008). Allegations of mere threats are simply not cognizable under 42 U.S.C. § 1983. See 8 Gaut, 810 F.2d at 925 (a mere threat does not constitute a constitutional wrong, and an allegation 9 that the threat was for the purpose of denying access to courts does not compel a contrary result). 10 Accordingly, plaintiff’s allegations about Lt. Leau’s alleged threat fail to state a cognizable claim 11 under 42 U.S.C. § 1983. 12 V. Conclusion and Order 13 The complaint states cognizable claims against defendants King and Celestine for 14 allegedly violating plaintiff’s rights under the Eighth Amendment. No other claims are stated, but 15 plaintiff is granted leave to amend. Plaintiff may use the attached form to notify the court whether 16 he will proceed on the complaint as screened or amend the complaint. 17 If plaintiff chooses to file an amended complaint, he has thirty days so to do. This 18 opportunity to amend is not for the purposes of adding new and unrelated claims. George v. 19 Smith, 507 F.3d 605, 607 (7th Cir. 2007). Local Rule 220 requires that an amended complaint be 20 complete without reference to any prior pleading. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 21 1967). The amended complaint should be titled “First Amended Complaint” and should reference 22 the case number. 23 In the alternative, plaintiff may proceed on the complaint, as screened. Following receipt 24 of a notice from plaintiff electing to proceed on the complaint as screened, the court will order 25 service on defendants King and Celestine only. 26 In accordance with the above, IT IS HEREBY ORDERED as follows: 27 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 28 //// 1 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action as set forth 2 | by separate order. 3 3. The Clerk’s Office shall send plaintiff a blank civil rights complaint form. 4 4. The complaint (ECF No. 1) states cognizable claims against defendants King and 5 | Celestine for allegedly violating plaintiff's rghts under the Eighth Amendment. 6 5. Within thirty (30) days of the date of this order plaintiff shall notify the court how he 7 | chooses to proceed. Plaintiff may use the form included with this order for this purpose. 8 6. Plaintiff is warned that failure to respond to this order will result in a recommendation 9 | that this action be dismissed for failure to obey a court order and failure to prosecute. 10 | Dated: January 30, 2024 11 12 13 ORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 14 || mend1512.sern 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 ERICK CHARLES MENDIOLA, No. 2:23-cv-01512 DB P 5 Plaintiff, 6 v. NOTICE OF ELECTION 7 J. KING, et al., 8 Defendants. 9 10 11 12 Select one: 13 14 _____ Plaintiff wants to proceed immediately on claims against defendants King and Celestine 15 for allegedly violating plaintiff’s rights under the Eighth Amendment. Plaintiff 16 understands that by going forward without amending the complaint he is voluntarily 17 dismissing all other claims and defendants. 18 19 ____ Plaintiff wants to amend the complaint. 20 21 22 DATED:_______________________ 23 Erick Charles Mendiola Plaintiff pro se 24 25 26 27 28